Superior Court of Nevada County. 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919 (1962); People x. Xxxxx, 60 Cal.2d 223, 32 Cal.Rptr. 424, 384 P.2d 16 (1963); Comment, The Self-Incrimination Privilege: Barrier to Criminal Discovery?, 51 Calif.L.Rev. 135 (1963); Note, 76 Harv.L.Rev. 838 (1963). The courts in Xxxxx v. Superior Court of Nevada County, supra, suggests that if manda- tory disclosure applies only to those items which the accused intends to introduce in evidence at trial, nei- ther the incriminatory nor the involuntary aspects of the privilege against self-incrimination are present. On balance the Advisory Committee is of the view that an independent right of discovery for both the de- fendant and the government is likely to contribute to both effective and fair administration. See Xxxxxxxx, Criminal Discovery and Self-Incrimination: Xxxxx Xxxxxxx Confronts the Dilemma, 53 Calif.L.Rev. 89 (1965), for an analysis of the difficulty of weighing the value of broad discovery against the value which in- heres in not requiring the defendant to disclose any- thing which might work to his disadvantage. Subdivision (b)(1)(A) provides that the defendant shall disclose any documents and tangible objects which he has in his possession, custody, or control and which he intends to introduce in evidence in his case in chief. Subdivision (b)(1)(B) provides that the defendant shall disclose the results of physical or mental exami- nations and scientific tests or experiments if (a) they were made in connection with a particular case; (b) the defendant has them under his control; and (c) he in- tends to offer them in evidence in his case in chief or which were prepared by a defense witness and the re- sults or reports relate to the witness’s testimony. In cases where both prosecution and defense have em- ployed experts to conduct tests such as psychiatric ex- aminations, it seems as important for the government to be able to study the results reached by defense ex- perts which are to be called by the defendant as it does for the defendant to study those of government experts. See Xxxxxxx, Criminal Discovery by the Prosecution: Frontier Developments and Some Proposals for the Fu- ture, 22 N.Y.U.Intra.L.Rev. 268 (1967); American Bar As- sociation, Standards Relating to Discovery and Proce- dure Before Trial § 3.2 (Supp., Approved Draft, 1970). Subdivision (b)(1)(C) provides for discovery of a list of
Superior Court of Nevada County supra, and People x. Xxxxx, supra. The defendant has the same option as does the government if it is believed that disclosure of the identity of a witness may subject that witness to harm or a threat of harm. The defendant can ask for a protective order under subdivision (d)(1) or can take a deposition in accordance with the terms of rule 15. Subdivision (b)(2) is unchanged, appearing as the last sentence of subdivision (c) of old rule 16. Subdivision (b)(3) provides that the defendant’s fail- ure to introduce evidence or call witnesses shall not be admissible in evidence against him. In states which re- quire pretrial disclosure of witnesses’ identity, the prosecution is not allowed to comment upon the de- fendant’s failure to call a listed witness. See X’Xxxxxx v. State, 31 Wis.2d 684, 143 N.W.2d 489 (1966); People x. (1959); and State x. Xxxxx, 73 Ohio App. 182, 55 N.E.2d 430 (1943). This is not, however, intended to abrogate the government’s right to comment generally upon the de- fendant’s failure to call witnesses in an appropriate case, other than the defendant’s failure to testify. Subdivision (c) is a restatement of part of old rule 16(g). Subdivision (d)(1) deals with the protective order. Al- though the rule does not attempt to indicate when a protective order should be entered, it is obvious that one would be appropriate where there is reason to be- lieve that a witness would be subject to physical or eco- nomic harm if his identity is revealed. See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). The language ‘‘by the judge alone’’ is not meant to be inconsistent with Xxxxxxxx v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). In Xxxxxxxx the court points out that there may be appropriate oc- casions for the trial judge to decide questions relating to pretrial disclosure. See Xxxxxxxx v. United States, 394 U.S. at 182 n. 14, 89 S.Ct. 961. Subdivision (d)(2) is a restatement of part of old rule 16(g) and (d). Old subdivision (f) of rule 16 dealing with time of mo- tions is dropped because rule 12(c) provides the judge with authority to set the time for the making of pre- trial motions including requests for discovery. Rule 12 also prescribes the consequences which follow from a failure to make a pretrial motion at the time fixed by the court. See rule 12(f). NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 94–247; 1975 AMENDMENT
